Opinion
2015 CU 1305
09-09-2016
RICHARD CHARLES BENTS v. KATHRINE PILAR BENTS
Anglea Cox Williams Slidell, LA Attorney for Plaintiff/Appellee Richard C. Bents Richard Ducote Pittsburgh, PA Attorney for Defendant/ Appellant Katherine (Bents) Jaubert
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 2011-14086 The Honorable Mary C. Devereux, Judge Presiding Anglea Cox Williams
Slidell, LA Attorney for Plaintiff/Appellee
Richard C. Bents Richard Ducote
Pittsburgh, PA Attorney for Defendant/ Appellant
Katherine (Bents) Jaubert BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
In this child custody dispute, a mother appeals from a trial court judgment awarding the father sole custody of the parties' three minor children and granting her only one additional weekend of visitation per month. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Richard Bents and Katherine Bents (now Katherine Jaubert) were married in March 2000. Three children were born of the marriage: son T.B. (born in 2001), daughter E.B. (born in 2004), and son S.B. (born in 2007). In 2007, the parties were domiciled and residing in Slidell, Louisiana. On July 2, 2011, Katherine left the state with the three children to purportedly visit her father in Kingsville, Texas. On July 11, 2011, she informed Richard by telephone that she intended to remain in Texas and that she wanted a divorce. That same day, Katherine initiated divorce proceedings against Richard in Texas.
Richard responded by filing a petition for divorce in Louisiana. Therein, he requested the return of the children to this state as well as an order that they be enrolled in St. Tammany Parish public schools. Apparently, in spite of Richard's objections, Katherine had homeschooled two of the children the previous year with the result being that one child would have to repeat the grade. A civil warrant was issued requiring the return of the children to this state. Katherine eventually returned to Louisiana with the children and filed an answer and reconventional demand in response to Richard's petition for divorce in the Louisiana proceedings.
Following a subsequent hearing officer conference, the hearing officer issued a report recommending that the parties share custody of the children without any designated domiciliary parent. The hearing officer's recommendation also included various custody provisions, including one prohibiting the parties from having overnight guests of the opposite sex when the children were in the home. The recommendation also set forth specific co-parenting guidelines for the parties to follow. These guidelines mandated, in part, that the parties communicate regarding the children and refrain from making negative comments about one another, or allow others to make such comments, and refrain from discussions regarding any marital or court-related issues when the children were present or within hearing range. On November 28, 2011, the trial court signed a judgment adopting the hearing officer's recommendations as the temporary orders of the court. On May 17, 2012, the trial court signed a consent judgment which made permanent the November 28, 2011 temporary order's provisions regarding custody, and the parenting guidelines.
The consent judgment awarded Katherine child support. Katherine was not employed at the time, and she was given an imputed annual income of $26,000.00. The judgment also stated that the support issued would be revisited once she gained full-time employment.
Unfortunately, soon thereafter the parties' relationship and the corresponding legal proceedings became exceedingly acrimonious. One of the primary points of contention between the parties was Katherine's paramour, Henry "Hank" Jaubert or, more precisely, Hank Jaubert's contact with the Bents children. Another was Katherine's alleged refusal to co-parent with Richard. On July 13, 2012, Richard moved to modify custody and to hold Katherine in contempt. Richard requested that the court award the parties joint custody of the children and designate him as the domiciliary parent. He claimed that Katherine was in contempt by allowing Hank to spend the night when the children were with her, by making derogatory comments about Richard to the children, and by refusing to share information or communicate with him regarding parenting issues. He also requested the appointment of a parenting coordinator, and that Katherine undergo a mental health evaluation. Katherine filed an opposition as well as reciprocal motions seeking: to be designated as domiciliary parent, contempt, the appointment of parenting coordinator, and a mental health evaluation of Richard. She maintained that Richard's legal pleadings were fueled by jealousy and his need for control.
At the subsequent hearing officer conference, the parties entered into a consent judgment. The consent judgment, signed on October 3, 2012, provided for the appointment of a parenting coordinator; ordered the continuation of the children's counseling with their psychologist, John Vogel; prohibited Hank from being in the presence of the Bents children pending the parties' divorce or their mutual agreement, and dismissed all outstanding motions filed by the parties, including their custody modification requests and rules for contempt. Finally, it provided that all previous judgments, not inconsistent with its provisions, were to remain in effect.
Two months later, Richard claimed that, in spite of the consent judgment, Katherine was continuing to allow Hank to have access to the children and was refusing to co-parent with him. In particular, Hank was posting photographs of the Bents children on Facebook and had sent long, rambling letters to Dr. Vogel wherein he referred to Richard as a "sick man" and generally discussed him in disparaging terms. Hank advised Dr. Vogel to be an "Angel" and not a "Grinch" and to tell Richard to "suck it up" and realize that a relationship between he (Hank) and the Bents children was in the children's best interest. Therefore, on December 10, 2012, Richard again filed a motion for joint custody and to be designated as the domiciliary parent, as well as a rule for contempt and other incidental matters. In response, Katherine, proceeding in proper person after discharging her attorney, filed several exceptions that she drafted with Hank's assistance.
On April 10, 2013, the trial court denied all but one of Katherine's exceptions. On April 30, 2013, the trial court signed an interim order awarding the parties joint custody, naming Richard as the domiciliary parent, awarding Katherine physical custody every other weekend, and terminating Richard's child support obligation to Katherine. This interim order also prohibited Hank from having any type of contact with the Bents children.
Katherine filed a motion to have mental health evaluations performed on herself, Richard, and all three children. Richard filed a rule to establish child support. On the date of the April 30, 2013 hearing, Richard and Katherine entered into a stipulated judgment, signed by the court on May 29, 2013. The stipulated judgment provided that the parties would maintain joint custody with Richard designated as the domiciliary parent. Katherine's physical custody of the children was reduced to every other weekend, and after school and camp every day until Richard came home from work as well as Wednesday nights beginning in the summer. Hank was again prohibited from having any contact with the children and Katherine was ordered to attend counseling until further notice of the court. Furthermore, the original parenting guidelines were to remain in effect, and Katherine was required to obtain full-time employment or enroll in school to enhance her education to obtain full-time employment. Finally, Katherine was found in contempt due to violation of a prior court order barring Hank from being in the presence of the children; Katherine was sentenced to 30 days in jail, but the sentence was suspended on the condition that she refrain from any future violations.
The May 29, 2013 stipulated judgment also provided for a summer vacation schedule and maintained the holiday schedule made permanent in the May 17, 2012 judgment.
Prior to hiring her second attorney, Katherine, again with Hank's assistance, also drafted and filed pleadings regarding community property matters wherein she questioned whether Richard, a navy pilot, was illegally receiving "fly pay" based on her assertion that he had "[lost] his wings." Richard subsequently filed a petition for an injunction. Therein, he alleged that Katherine and/or agents working on her behalf were calling his place of employment to question his superior officers about his status and right to "fly pay." It was also alleged that Hank was mailing items to Richard, showing up at the office of Richard's attorney, and otherwise intrusively inserting himself into the parties' custody proceedings. At the hearing, it was established that Richard did in fact "have his wings." Consequently, the trial court issued a preliminary injunction on October 14, 2013, enjoining Katherine or her agents from contacting Richard's place of employment without permission of the court. The judgment also prohibited Hank from having any involvement in the case or mailing items to Richard or showing up at the office of Richard's attorney.
A prescheduled hearing to assess the parties' compliance with the May 29, 2013 stipulated judgment was held on December 18, 2013. Richard asserted that Katherine was again refusing to abide by court orders; however, he chose to waive the right to pursue any matters for contempt purposes through the date of the compliance hearing, claiming he did not want to risk the chance of Katherine being put in jail at Christmas.
Reportedly, around this time, Katherine became pregnant with Hank's child. Citing her imminent marriage to Hank, Katherine filed a motion in January 2014, requesting that the trial court remove the restrictions prohibiting Hank from having contact with the children.
Katherine continued to be antagonistic toward Richard and refused to engage in anything other than minimal and rudimentary communication with Richard about the children. On January 18, 2014, in a Family Wizard email to both Richard and Ms. Patricia Percy (the court-appointed parenting coordinator), Katherine complained about Richard's repeated requests that she communicate with him, stating "[m]ost of the information [Richard] is looking for from me does deal with the kids but is something he could be talking about with them."
On February 14, 2014, in response to Richard's question to her about her going to S.B.'s pediatrician in relation to an evaluation, Katherine replied with the following:
You are acting unstable again. I went to Dr. Stevenson's office and picked up the forms. I did not talk to her. ... As to going behind your back to manipulate situations, I don't know what you are talking about. Perhaps your mistrust is symptom of your own behavior. You have conferences with [Ms.] Percy, you email [T.B.'s] teachers but you don't forward what you wrote, you have your Wednesday activity that denied under oath to, and you lie constantly in court documents and to Dr. Vogel. Professional liars often have trust issues.Then, despite the fact that she had willingly entered into the prior consent orders and stipulated judgments regarding both the "Hank restriction" and custody, she continued:
And no, I don't believe your interest is in the children. If ... you never would have started your vicious attacks on Hank or worked so hard to split their relationship. You wouldn't have tried to split the children from their mother. You would actually listen to what they are saying. All you actions show you to be jealous and not able to let go. The one you are hurting the most is yourself. ... As the months go by [the kids] do worse in school, they avoid you more, and they hate you more. You are the one I pity most.
Later that month, in consideration of Katherine and Hank's marriage, Richard had agreed to voluntarily lift the restrictions pertaining to Hank, albeit on a trial basis and subject to certain conditions. A provisional agreement was reached with the help of the parenting coordinator, Ms. Percy. However, Richard claimed that within a month, Katherine was refusing to abide by the conditions.
By this period of time, the Bents children were clearly in crisis. The undeniably detrimental effect caused by the stress of their parents' continuing conflict and the ongoing litigation had become painfully obvious.
Six-year-old S.B., who had been toilet trained, began soiling his pants again. He got in trouble at school for pushing and shoving and, on another occasion for inappropriately touching a child. He was also diagnosed with oppositional defiant disorder and had to begin treatment with a psychiatrist. It was believed that he could also be suffering from depression, anxiety, and/or have ADD/ADHD. S.B.'s grades were poor and he was in danger of failing the first grade.
Likewise, twelve-year-old T.B. had failed to keep up with his schoolwork, had very poor grades, and was in danger of failing the seventh grade. In addition, T.B. complained of frequent headaches. His pediatrician felt that a majority of these were stress-induced and caused by the family tension. The doctor believed that T.B. used them partly to manipulate his mother, because the headaches typically occurred only at school at which time he would call Katherine and she would check him out against Richard's wishes.
In late February 2014, T.B. had an extreme tantrum as they were leaving Dr. Vogel's office. T.B. had asked Richard if he could go out and play with his toy guns. It was already getting dark, and it was a school night. Richard told him no, because he needed to go home and study for a subject he was failing. T.B. became angry, began screaming, and refused to go home with Richard. He then fled Dr. Vogel's office, ran to the street, and down the block. Richard tried to calm T.B. Ultimately, in order to defuse the situation, Dr. Vogel suggested that T.B. go home with Katherine. Richard reluctantly agreed, although he felt that it was rewarding inappropriate behavior and setting a bad precedent.
Within a few days, E.B. threw a tantrum when Katherine was dropping E.B. off at Richard's home. E.B. became hysterical, screaming that she did not want to go to her father's house. Richard tried to calm her down and brought her inside. E.B. then called Katherine to come back and get her and Katherine returned. However, when Katherine returned, Richard insisted that E.B. remain. At E.B.'s request, Katherine gave E.B. her phone and E.B. used it to text to Dr. Vogel.
By her own admission, Katherine did not intervene or provide any support to Richard as he tried to calm the children during these tantrums, but instead passively and silently watched.
On March 24, 2014, T.B. brought a knife to school from his knife collection that he kept at Katherine's house. Students who witnessed T.B. with the knife reported it to school officials because they were afraid he might hurt himself. T.B. faced possible expulsion, but fortunately, was only suspended for several days. Purportedly, in the event T.B. was expelled, Katherine intended to homeschool him. Richard had repeatedly asked Katherine not to allow the children to have access to weapons, including T.B.'s knife collection.
T.B. was out of school for a total of five days. He received an official suspension of three days, but had been sent home two days prior to that decision being rendered.
After T.B. returned from Katherine's a few days later, Richard noticed that T.B. had what appeared to be infected insect bites, so Richard brought him to the doctor's office. The doctor prescribed a sulphur-based ointment for T.B. T.B. subsequently suffered an allergic reaction to the medicine. When Richard brought T.B. back to the doctor's office, Katherine met them there. It was determined that T.B. needed a steroid shot. T.B. became hysterical, crawling under the examination table and picking up the garbage can holding it front of him, blaming his father for the allergic reaction, screaming it was all Richard's fault as Richard tried to calm him. During the tantrum, Katherine said nothing in support of Richard or to rebut T.B.'s contention that it was all Richard's fault. She did however, take out her phone, and proceed to take some photographs.
Soon after, Katherine filed an ex parte motion for provisional custody, motion to change custody, and requested a "Watermeier hearing." See Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir. 1985), writ denied, 464 So.2d 301 (La. 1985). She asserted that the present custody arrangement was not working as evidenced by the children's tantrums about going to Richard's home and by T.B. bringing the knife to school. Katherine alleged that T.B. intentionally brought the knife to school believing if he was caught, he could tell the "judge" that he wanted to live with Katherine. Katherine's ex parte motion was denied and a hearing officer conference and a rule hearing was set on her motions.
Katherine later filed additional pleadings supplementing these motions.
On April 14, 2014, Richard reconvened seeking sole custody of the children. He alleged that since he allowed Katherine additional custody time with the children and agreed to lift the "Hank restriction," the children were doing worse than ever. He further alleged that Katherine had increased her attempts to alienate the children from him and was "coaching" them in what to do and say, even encouraging them to lie and rewarding their outbursts. In addition, Richard cited Katherine's repeated violations of court orders, her failure to co-parent with him, her refusal to abide by decisions he makes as the domiciliary parent with respect to issues such as education, discipline, access to weapons, medical care, and summer camps. He alleged that Katherine continues to involve the children in the litigation, despite a court order prohibiting her from doing so, and tells them she will homeschool them if they live with her.
Also, in April 2014, Richard's attorney notified Katherine's attorney that Richard no longer agreed to lift the "Hank restriction" and expected the parties to abide by the court's judgments going forward.
On May 5, 2014, a hearing officer's conference was held regarding the parties' respective custody motions as well as Katherine's motion to lift the "Hank restriction." The hearing officer concluded that the children were "in crisis" and that joint custody was clearly not working out. She determined that Katherine had not shown a change in circumstances, but Richard had. She concluded that the present custody schedule should be changed immediately and that the "Hank restriction" should remain in effect. She further recommended that Richard be granted sole custody, with Katherine having visitation every other weekend.
On the same date as the conference, Richard filed another rule for contempt asserting that Katherine had violated the provisions of the May 29, 2013 and the October 19, 2013 judgments. Richard alleged that after notifying Katherine that he no longer agreed to lift the "Hank restriction" and expected her to comply with the trial court's judgments, she had violated those judgments by permitting Hank to have contact with the children. In addition, he alleged Katherine had continued to violate the co-parenting guidelines by making negative remarks about him and by refusing to share information and communicate with him. Finally, Richard contended that Katherine was in violation of a provision of the May 29, 2013 judgment due to her failure to obtain gainful employment.
A hearing on Katherine's motion to lift the "Hank restriction," the parties' respective custody requests, as well as Richard's rule for contempt was held on July 18, and September 22-23, 2014. At the hearing, there was a great deal of testimony, including that of the children's psychologist, Dr. Vogel, and the parties' court-appointed parenting coordinator, Ms. Percy. The testimony established that, at the time of hearing, the children's behavior had improved dramatically. There were no more tantrums, they were doing well in school, and T.B. was no longer suffering from headaches. The testimony further revealed that Katherine had no inclination to communicate with Richard. In fact, on occasion, Hank would respond to Richard's Family Wizard messages in place of Katherine, who had no desire to do so.
After the hearing concluded, the trial court granted Katherine's request for a Watermeier hearing, and the trial court interviewed the two older children, T.B. and E.B., in chambers. The matter was then taken under advisement.
On December 15, 2014, the trial court rendered judgment awarding sole custody of the children to Richard, awarding Katherine an additional weekend of visitation each month, and removing the restrictions regarding Hank pending further orders of the court. On December 16, 2014, the trial court signed a judgment finding Katherine in contempt of court, sentencing her to seven days in jail, suspending the sentence on the condition of no further violations, and ordering her to pay Mr. Bents $750.00 in attorney's fees and all court costs.
Katherine has appealed both of these judgments. Katherine's appeal of the contempt judgment is addressed in a companion case, Bents v. Bents, 2015 CA 1306, (La.App. 1 Cir. ___/___/16) (unpublished). Thus, the instant appeal pertains solely to Katherine's challenge of the December 15, 2014 custody judgment. With respect to that judgment, Katherine asserts the following two assignments of error:
[1.] The trial court clearly erred as a matter of law, and manifestly erred and abused [its] discretion in awarding [Richard] sole custody where the record lacked clear and convincing evidence that such was in the children's best interest, as required by [La.] C.C. art. 132.
[2.] The trial court manifestly erred and abused [its] discretion in granting [her] only one additional weekend [of visitation] per month.
APPLICABLE LAW
The court shall award custody in accordance with the best interest of the child. La. C.C. art. 131. Indeed, the best interest of the child is the sole criterion to be met in making a custody award and the trial court must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child's emotional, physical, material and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d 700, 702.
If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. La. C.C. art. 132. In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. Id. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. State in the Interest of J., K., and T., 582 So.2d 269, 275 (La. App. 1 Cir.), writ denied, 583 So.2d 1145 (La. 1991). A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. La. C.C. art. 136A.
A party seeking to modify a custody decree contained in a stipulated judgment, as herein, must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738. In this matter, the appellant does not contest the existence of a material change of circumstance.
In determining the best interest of the child, the court shall consider all relevant factors, and such factors may include those enumerated in La. C.C. art. 134. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Whitmore v. Stamps, 2012-2069 (La. App. 1 Cir. 6/7/13), writ denied, 2013-1539 (La. 7/24/13), 120 So.3d 243. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id.
The factors listed in Article 134 include the following:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
DISCUSSION
At the outset, we note that in challenging both the custody and visitation determinations made by the trial court, Katherine essentially urges only two arguments on appeal. She claims the trial court erred (1) in disregarding the testimony of Dr. Vogel and (2) in disregarding the testimony of T.B. and E.B.
Citing Griffith v. Latiolais, 2010-0754 (La. 10/19/10), 48 So.3d 1058, Katherine argues that an award of sole custody cannot be considered proven "by clear and convincing evidence, and must be reversed, where the expert testimony at trial supported a joint custody decree." In essence, Katherine contends that a trial court is bound by expert opinion when making a determination on sole custody. However, even assuming in this case that Dr. Vogel had actually expressly opined that joint custody was in the best interest of the children at this point and time, we would nonetheless find Katherine's argument to be without merit. Griffith does not stand for the proposition that a trial court is automatically precluded from awarding sole custody when there is controverting expert opinion. Indeed, with respect to the testimony of expert witnesses in child custody hearings, the Louisiana Supreme Court recently stated as follows:
Dr. Vogel did not perform a custody evaluation, but instead testified in his capacity as the children's psychologist and was accepted by the court as an expert in that capacity. Thus, he was both a fact and opinion witness. Dr. Vogel testified regarding his understanding that 50/50 custody was an "eventuality" that was bound to happen "sooner or later" and that it was what the children wanted.
Expert witnesses are intended to "assist the trier of fact" in understanding the evidence or in the determination of a fact in issue. Without question, the opinion of an expert may be given great weight by a trial court in its determination of the psychological well-being of a child or parent. However, this does not mean that the expert has usurped the authority of the trial court in determining the key issue of "best interest of the child." As we [have] stated ... this decision is based on all the evidence and testimony presented to the fact-finder. It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. [Internal citations omitted.]C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So.3d 16, 31.
Thus, Dr. Vogel's testimony was but some of the evidence available for the trial court's consideration, and the trial court was clearly entitled to disregard that testimony, either in whole or in part.
Katherine's other contention is that the trial court failed to credit the testimony of T.B. and E.B. in making its decision. The reasonable preference of a child deemed to be of sufficient age is a factor to be considered in the determining the best interest of the child; however, we note that is but one factor. In this case, we do not find that the testimony of 13-year-old T.B. and 10-year-old E.B. to be definitive. The record establishes that T.B. has a number of issues and is immature for his age. When questioned by the trial court, he frequently provided only minimal responses and, on occasion, no response at all. T.B. and E.B. did complain that Richard did not adequately assist T.B. with his homework; however, when asked by the trial court how T.B.'s grades had improved, they had no explanation.
Aside from the complaint regarding T.B.'s homework, the gist of both children's limited testimony was that they wanted to spend more time with their mother and be allowed to see Hank. In awarding Katherine an additional weekend of visitation per month and in lifting the "Hank restriction," the trial court actually accommodated their wishes to some degree. Accordingly, we find no merit in Katherine's assertion that the trial court erroneously disregarded the children's testimony.
After an exhaustive review of the record, we find that it amply supports the trial court's finding that Richard proved, by clear and convincing evidence, that sole custody was in the best interest of the children. Similarly, the trial court did not abuse its discretion in awarding Katherine only one additional weekend of visitation per month. The total amount of visitation afforded Katherine, three weekends per month in addition to summer vacation and holiday visitation is reasonable under the facts of this case.
Following the May 5, 2014 conference, the hearing officer noted that joint custody was clearly not working and that the Bents children were "in crisis." Therefore, pursuant to her recommendation, made the interim order of the court, Katherine's physical custody of the children was reduced to every other weekend. By the time the hearing took place a few months later, it was undisputed the children's situation had materially improved. T.B. was no longer suffering from frequent headaches. The children were doing well in school. Their behavior had improved, and the hysterical tantrums had ceased. They had also developed a better relationship with Richard.
We agree that joint custody was not working in this case. As domiciliary parent, Richard, by law, possessed the authority to make all decisions affecting the children. However, Katherine repeatedly refused to defer to his decisions on issues such as discipline, medication, homework, access to weapons, and school attendance. In addition, parents with joint custody are obligated to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority. Evans, 708 So.2d at 738. See also La. R.S. 9:336(3). However, the record makes it abundantly clear that Katherine has no desire to effectively communicate or confer with Richard. Her antipathy toward Richard, her reticence to communicate or confer with him, as well as her refusal to abide by his decisions creates a perpetually stressful atmosphere that is clearly detrimental to the children.
The term "custody" is usually broken down into two components: physical or "actual" custody and legal custody. The typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child of frequent and continuing contact with both parents. Legal custody, by contrast, has previously been defined as the right or authority of a parent or parents, to make decisions concerning the child's upbringing. Evans, 708 So.2d at 737 (citing George D. Ernest, III, Joint Custody and Parents' Liability Under Civil Code Article 2318, 44 La. L.Rev. 1791 (1984)).
Under current Louisiana law, when parents are awarded joint custody, the court typically designates a domiciliary parent who is vested with the authority to make decisions concerning the child. See La. R.S. 9:335(B)(3). However, all major decisions made by the domiciliary parent concerning the child are subject to judicial review upon motion by the non-domiciliary parent. Moreover, despite the domiciliary parent's decision-making authority, joint custody nonetheless obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority. See La. R.S. 9:336; Evans, 708 So.2d at 738.
When a parent is awarded sole custody, the other parent is still entitled to reasonable visitation rights unless it is shown that it is not in the child's best interest. See La. C.C. 136(A). However, the parent awarded sole custody is entitled to make all decisions concerning the child and there is no obligation on a sole custodian to confer with the other parent about anything. 1 La. Prac. Divorce § 7:62
There is no doubt that the children have suffered from the constant and ongoing disputes in this highly litigated case. An award of joint custody leaves the door open for the litigation to continue, particularly given Katherine and Richard's numerous disagreements, especially, their opposing views on the major issue of homeschooling. Accordingly, we conclude that, at this point, sole custody is in the best interest of the children.
Furthermore, we find the visitation awarded to Katherine is reasonable under the circumstances. When Richard and Katherine were both exercising physical custody during the school week, there was a lack of communication and cooperation on Katherine's part regarding the children's homework. As a result, T.B. and S.B. came dangerously close to failing. However, under the current schedule, whereby Richard exercises sole custody of the children during the school week, they are clearly doing better. Therefore, we find no error in the trial court awarding Katherine one additional weekend per month.
CONCLUSION
For all of the foregoing reasons, the judgment of the trial court is affirmed. Katherine Jaubert is cast with all costs of this appeal.
AFFIRMED.